Filed 8/11/22 In re Viehmeyer CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re ROBBIE R. VIEHMEYER

 on Habeas Corpus.

 G059162

 (Super. Ct. No. 02CF2946)

 O P I N I O N 

Original proceedings; petition for writ of habeas corpus after a judgment of 

the Superior Court of Orange County, Richard F. Toohey, and Cheri T. Pham, Judges. 

Petition denied.

Robbie R. Viehmeyer, in pro. per.; Sylvia W. Beckham, under appointment 

by the Court of Appeal, for Petitioner.

Xavier Becerra and Rob Bonta, Attorneys General, Phillip J. Lindsay, 

Assistant Attorney General, Amanda J. Murray and Rachael A. Campbell, Deputy 

Attorneys General, for Respondent.

* * *
2

Robbie R. Viehmeyer filed a petition for writ of habeas corpus in this court, 

contending he is eligible for early parole consideration under subdivision (a) of section 

32 to article I of the California Constitution (section 32(a)). For the reasons set forth in 

this opinion, we deny the petition.

Proposition 57, the Public Safety and Rehabilitation Act of 2016, added 

section 32 to article I of the California Constitution. Section 32(a) provides that “[a]ny 

person convicted of a nonviolent felony offense” shall be eligible for early parole 

consideration “after completing the full term for his or her primary offense.” Pursuant to 

subdivision (b) of section 32 to article I of the California Constitution, the California 

Department of Corrections and Rehabilitation (CDCR) adopted regulations to implement 

section 32(a). One of those regulations excludes from early parole consideration any 

inmate “currently convicted of and is sentenced to a term of incarceration for a ‘violent 

felony,’ including a term for which a violent felony sentence was stayed under Penal 

Code section 654,” and then defines violent felony as “a crime or enhancement as defined

in subdivision (c) of Section 667.5 of the Penal Code.” (Cal. Code Regs., tit. 15, § 3490, 

subds. (a)(5), (c).)

In In re Mohammad (2022) 12 Cal.5th 518, 524 (Mohammad), the 

California Supreme Court held that the CDCR acted within its authority in adopting the 

regulations to implement section 32(a).

While being pursued on foot by two police officers, Viehmeyer fired a 

semiautomatic pistol four times directly at the head of one of the officers. Viehmeyer 

was convicted of attempted voluntary manslaughter with an enhancement for personal 

use of a firearm, assault with a firearm on a peace officer with enhancements for personal 

use and personal discharge of a firearm, possession of a firearm by a felon, and the 

unlawful taking of a vehicle. For purposes of sentencing, the trial court selected assault 

with a firearm on a peace officer as the primary offense. Viehmeyer has served the full 

term for the primary offense, which section 32(a) defines as “the longest term of 
3

imprisonment imposed by the court for any offense, excluding the imposition of an 

enhancement.” Viehmeyer remains incarcerated on the sentences imposed on the 

personal discharge of a firearm enhancement, the counts for possession of a firearm and 

unlawful taking of a vehicle, and the sentencing enhancements for prior convictions. 

Additionally, Viehmeyer’s sentence for attempted voluntary manslaughter with a firearm 

use enhancement was imposed but stayed.

We hold that where a defendant is convicted of both a violent felony and a 

nonviolent felony, and the nonviolent felony is the primary offense for purposes of 

sentencing, the defendant is not entitled to early parole consideration under section 32(a) 

after completing the full term for the primary felony offense if he or she is still serving a 

term for the violent felony offense. Section 3490, subdivision (a)(5) of title 15 of the 

California Code of Regulations provides that a defendant is “sentenced to a term of 

incarceration for a ‘violent felony’” if “a violent felony sentence was stayed under Penal 

Code section 654.” Therefore, Viehmeyer is not entitled to early parole consideration, 

and we deny his petition for writ of habeas corpus.

I

FACTUAL AND PROCEDURAL BACKGROUND

The facts regarding Viehmeyer’s crimes are drawn from our prior opinion 

People v. Viehmeyer (Apr. 8, 2005, G033447) [nonpub. opn.]:

“On November 7, 2002, Santa Ana Police Officers William Sweet and 

Robert Ayres saw Viehmeyer, who was driving a 1983 Chevrolet Monte Carlo, make an 

illegal U-turn. While Viehmeyer was making the U-turn, the car stalled in the curb lane. 

A private citizen got out of his own car and helped push defendant’s car out of the traffic 

lanes. Officer Sweet then pulled his patrol car up behind defendant’s car and began 

pushing defendant’s car with the patrol car. As the officers were pushing defendant’s car 

toward a gas station, they were informed over the police radio that the car defendant was 
4

driving had been reported stolen. The officers decided to wait for additional police units 

to arrive before attempting to arrest defendant.

“When the officers stopped pushing defendant’s car, defendant 

‘immediately’ opened his driver’s side door and got out of the car. Officers Sweet and 

Ayres exited the patrol car; Officer Sweet drew his gun and ordered defendant to get back 

in the car. Defendant told the officers he had run out of gas, looked back at Officer 

Sweet, and reached into the car. Defendant then turned around and ran across the street 

and into the parking lot of a nearby strip mall. Both officers began chasing defendant, 

yelling, ‘stop, police.’

“Defendant turned around, pulled a gun from his waistband, reached over 

his shoulder, and fired two rounds from a .380-caliber semiautomatic pistol directly at 

Officer Sweet’s head. At the time, defendant was approximately 70 feet away from the 

officers. They returned defendant’s fire. Defendant fired two more shots at Officer 

Sweet’s head. Defendant’s gun then jammed, and he threw it to the ground and raised his 

hands.

“Defendant was arrested. Eight .380-caliber bullets were found in a coin 

purse he was carrying. A pipe used for smoking methamphetamine was found in 

defendant’s jacket.

“Defendant testified that while being arrested in 1999 pursuant to a search 

warrant, he had been beaten by the police and severely bitten by a police dog. Defendant 

testified he ran from Officers Sweet and Ayres because he was ‘scared,’ and ‘because I 

don’t trust police officers, for one thing, for what they did to me in the past. I thought for 

sure, if they find this [gun] on me, they know I’ve got a lawsuit going against them [for 

the injuries suffered during the 1999 arrest], they were just going to beat me up again and 

laugh at me.’ Defendant had been abusing methamphetamine for 10 months before the 

incident. Defendant testified he shot in the direction of the officers with the intent to 
5

scare them and get them to stop chasing him, but he did not intend to kill them.” (People 

v. Viehmeyer, supra, G033447.)

Viehmeyer was convicted by a jury of attempted voluntary manslaughter 

(Pen. Code, §§ 192, subd. (a), 664, subd. (a) (count one)), assault with a firearm on a 

peace officer (Pen. Code, § 245, subd. (d)(1) (count two)), possession of a firearm by a 

felon (Pen. Code, former § 12021, subd. (a)(1) (count three)),1and unlawful taking of a 

vehicle (Veh. Code, § 10851, subd. (a) (count four)). The jury found true the sentencing 

enhancement allegations that Viehmeyer had personally used a firearm in the commission 

of counts one and two (Pen. Code, § 12022.5, subd. (a)), and personally discharged a 

firearm in the commission of count two (Pen. Code, § 12022.53, subds. (a), (c)). The 

trial court found true the allegations that Viehmeyer had served two prior prison terms. 

(Pen. Code, § 667.5, subd. (b).)

The trial court sentenced Viehmeyer to a determinate term of 31 years four 

months. The court selected count two as the principal term and imposed the upper term 

of eight years, plus a 20-year enhancement for personally discharging a firearm in the 

commission of the crime. The court imposed the upper term of five years six months for 

count one and 10 years for the personal use of a firearm sentencing enhancement but 

stayed execution of this sentence pursuant to Penal Code section 654. The court also 

imposed consecutive subordinate terms of eight months for counts three and four, and 

two one-year enhancements for the prior prison terms. Viehmeyer has served more than 

17 years on his prison sentence.

1

 Penal Code former section 12021, subdivision (a)(1), which was in effect at the time 

Viehmeyer’s offenses occurred, provided: “Any person who has been convicted of a 

felony under the laws of the United States, the State of California, or any other state, 

government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of 

Section 12001.6, or who is addicted to the use of any narcotic drug, who owns or has in 

his or her possession or under his or her custody or control any firearm is guilty of a 

felony.” (Stats. 2003, ch. 495, § 3.)
6

Viehmeyer challenged his convictions and his sentence in a direct appeal. 

In an unpublished opinion, a panel of this court affirmed the judgment. (People v. 

Viehmeyer, supra, G033447.)

Viehmeyer requested a parole suitability hearing pursuant to Proposition 57 

and In re Mohammad (2019) 42 Cal.App.5th 719 (see Mohammad, supra, 12 Cal.5th 518

[reversed]). Viehmeyer’s request was denied. In April 2020, Viehmeyer filed a petition 

in the trial court for writ of habeas corpus, which was also denied.

Viehmeyer then filed a petition for writ of habeas corpus in this court. 

After this court issued its opinion denying Viehmeyer’s petition, the California Supreme 

Court granted Viehmeyer’s petition for review. The Supreme Court transferred the case

back to this court after it issued its opinion in Mohammad, supra, 12 Cal.5th 518. Both 

Viehmeyer and the Attorney General filed supplemental briefs.

II

DISCUSSION

In November 2016, the California electorate approved Proposition 57, the 

Public Safety and Rehabilitation Act of 2016, which added section 32 to article I of the 

California Constitution: “(a) The following provisions are hereby enacted to enhance 

public safety, improve rehabilitation, and avoid the release of prisoners by federal court 

order, notwithstanding anything in this article or any other provision of law: [¶] 

(1) Parole Consideration: Any person convicted of a nonviolent felony offense and 

sentenced to state prison shall be eligible for parole consideration after completing the 

full term for his or her primary offense. [¶] (A) For purposes of this section only, the full 

term for the primary offense means the longest term of imprisonment imposed by the 

court for any offense, excluding the imposition of an enhancement, consecutive sentence, 

or alternative sentence. [¶] (2) Credit Earning: The Department of Corrections and 

Rehabilitation shall have authority to award credits earned for good behavior and 
7

approved rehabilitative or educational achievements. [¶] (b) The Department of 

Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, 

and the Secretary of the Department of Corrections and Rehabilitation shall certify that 

these regulations protect and enhance public safety.” (Cal. Const., art. I, § 32.)

Pursuant to section 32, subdivision (b) of article I of the California 

Constitution, the CDCR adopted regulations addressing parole considerations for 

nonviolent offenders. (Cal. Code Regs., tit. 15, §§ 3490-3497.) As relevant to this 

opinion, these regulations include the following:

“(a) An inmate is a ‘determinately-sentenced nonviolent offender’ if the 

inmate was sentenced to a determinate term and none of the following are true: 

[¶] . . . [¶] (5) The inmate is currently convicted of and is sentenced to a term of 

incarceration for a ‘violent felony,’ including a term for which a violent felony sentence 

was stayed under Penal Code section 654; [¶] . . . [¶] (c) ‘Violent felony’ is a crime or 

enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code. [¶] 

(d) ‘Primary offense’ means the single crime for which any sentencing court imposed the 

longest term of imprisonment, excluding all enhancements, alternative sentences, and 

consecutive sentences.” (Cal. Code Regs., tit. 15, § 3490, subds. (a)(5), (c), (d).)

In Mohammad, supra, 12 Cal.5th 518, having considered the language of 

the constitutional provision and the ballot materials for Proposition 57, the California 

Supreme Court upheld the CDCR’s regulations. “We therefore conclude that the 

[CDCR] acted within its discretion when it promulgated section 3490, subdivision (a)(5) 

of the California Code of Regulations excluding individuals currently serving a sentence 

for a violent felony from early parole consideration. This conclusion, however, is not a 

determination that the Department’s regulation is the most plausible of the various 

interpretations offered. Because the Department is vested with the authority to adopt 

regulations in this context, we need only conclude that its regulation is a valid exercise of 

its rulemaking authority.” (Mohammad, at p. 541.)
8

Because the petitioner in Mohammad did not contest that he was currently 

serving a term for committing a violent felony, after concluding the CDCR’s regulation 

was valid, the Supreme Court concluded the petitioner’s request for early parole 

consideration had been properly denied. (Mohammad, supra, 12 Cal.5th at p. 541.)

In the present case, Viehmeyer contends he is not “currently serving” a 

term for a violent felony because the prison term for his conviction for attempted 

voluntary manslaughter with a firearm use enhancement—which Viehmeyer concedes is 

a violent felony offense—is stayed.

2

In determining early parole eligibility, section 32(a) provides that “the full 

term for the primary offense means the longest term of imprisonment imposed by the 

court for any offense, excluding the imposition of an enhancement, consecutive sentence, 

or alternative sentence.” (Cal. Const., art. I, § 32, subd. (a)(1)(A).)

The current language of the relevant regulation provides that an inmate is 

not “‘a determinately-sentenced nonviolent offender’” if “[t]he inmate is currently 

convicted of and is sentenced to a term of incarceration for a ‘violent felony,’ including a 

term for which a violent felony sentence was stayed under Penal Code section 654.” 

(Cal. Code Regs., tit. 15, § 3490, subd. (a)(5), italics added.)

The italicized language was added to the CDCR’s regulations effective 

February 28, 2022. (Cal. Code Regs., tit. 15, § 3490, Register 2022, No. 9 (Feb. 28, 

2022), pp. 75-76.) Viehmeyer asks this court not to consider the newly revised regulation 

because the Supreme Court transferred the matter for reconsideration in light of 

Mohammad, which was decided before the regulation was amended. We reject 

Viehmeyer’s request. (See generally 20th Century Ins. Co. v. Garamendi (1994) 8 

2

 Viehmeyer also contends that the firearm discharge enhancement attached to the 

primary term for assault with a firearm on a peace officer cannot be considered for 

purposes of early parole consideration. Because our conclusion with regard to the 

imposed but stayed term of imprisonment is dispositive, we need not address this issue.
9

Cal.4th 216, 281-282 [“‘“Secondary” retroactivity’ occurs when regulations ‘affect[] the 

future legal consequences of past transactions . . . .’ [Citation.] That is indeed present. 

‘[B]ut such “‘secondary’ retroactivity” is an entirely lawful consequence of much agency 

rulemaking and does not by itself render a rule invalid.’ [Citation.] That it is an ‘entirely

lawful consequence’ means just that: it does not itself offend any law, including the 

United States and California Constitutions and their respective due process clauses”].)

Viehmeyer also argues that the Attorney General previously asked this 

court to “refrain from looking beyond the regulation governing nonviolent parole 

eligibility” and not to “apply any alternative-eligibility analysis that the [CDCR] did not 

adopt.” Considering the current language of the relevant regulation is not a matter of 

looking beyond the regulation or applying an analysis not used by the CDCR.

On count one, attempted voluntary manslaughter (Pen. Code, §§ 192, 

subd. (a), 664, subd. (a)), with a sentencing enhancement allegation for personally using a 

firearm (Pen. Code, § 12022.5, subd. (a)), the trial court imposed and stayed a total term 

of 15 years six months. Under Penal Code section 667.5, subdivision (c)(8), “any felony 

in which the defendant uses a firearm which use has been charged and proved as 

provided in . . . Section 12022.5” is a violent felony. Therefore, under the CDCR’s 

regulations, Viehmeyer is serving a term for a violent felony despite that term being 

stayed. He is therefore not eligible for early parole consideration, and the denial of his 

request for early parole consideration was proper.
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III

DISPOSITION

The order to show cause is discharged and the petition for writ of habeas 

corpus is denied.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.